in the court of appeal of malaysia at putrajaya ... aktivis reformasi melalui perbuatan ganas dengan...
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.IN THE COURT OF APPEAL OF MALAYSIA AT PUTRAJAYA
[APPELLATE JURISDICTION]
CIVIL APPEAL NO: W-01-440-10/2012
Between
1. TAN SRI NORIAN MAI 2. MENTERI HAL EHWAL DALAM NEGERI 3. KERAJAAN MALAYSIA …APPELLANTS
And
1. CHUA TIAN CHANG 2. HISHAMUDDIN BIN RAIS 3. SAARI BIN SUNGIB 4. BADARUDDIN BIN ISMAIL 5. BADRULAMIN BIN BAHRON 6. ABDUL GHANI BIN HAROON 7. GOBALAKRISHNAN A/L NAGAPPAN …RESPONDENTS
[In the Matter of High Court of Malaya at Kuala Lumpur Civil Suit No. S1-21-39-2004
Between
1. Mohamad Ezam bin Mohd Nor 2. Chua Tian Chang 3. Hishamuddin Bin Rais 4. Saari Bin Sungib 5. Badaruddin Bin Ismail 6. Badrulamin Bin Bahron 7. Abdul Ghani Bin Haroon 8. Gobalakrishnan A/L Nagappan … Plaintiffs
And
1. Tan Sri Norian Mai 2. Menteri Hal Ehwal Dalam Negeri 3. Kerajaan Malaysia … Defendants]
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CORAM:
Abdul Wahab Patail, JCA Rohana Yusuf, JCA
Umi Kalthum Abdul Majid, JCA
Date of Judgment: 11th December 2014
GROUNDS OF JUDGEMENT
[1] The 1st to the 8th Plaintiffs, Mohamad Ezam bin Mohd Nor, Chua
Tian Chang, Hishamuddin Bin Rais, Saari Bin Sungib, Badaruddin Bin
Ismail, Badrulamin Bin Bahron, Abdul Ghani Bin Haroon and
Gobalakrishnan A/L Nagappan commenced an action in the tort of
false/unlawful arrest and detention, and the tort of defamation for a claim
for general, aggravated and exemplary damages against the Appellants.
At the trial before the High Court, the 1st, 7th and 8th Plaintiffs
discontinued their action. The 2nd, 3rd, 4th, 5th and 6th Plaintiffs
remained. They are hereinafter referred to collectively as "the Plaintiffs".
[2] The defences relied upon by the 1st, 2nd and the 3rd Defendants
Tan Sri Norian Mai, Menteri Hal Ehwal Dalam Negeri and Kerajaan
Malaysia (collectively "the Defendants") were:
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(a) at all material times the arrest and detention were in
accordance with section 73(1) and section 8 of the Internal
Security Act 1980 ("ISA"); and
(b) the press statements were not defamatory; and even if they
were, the Defendants relied upon the defence of justification
and qualified privilege.
[3] At the end of the trial, the High Court entered judgment for the
Plaintiffs and awarded:
(a) to the 2nd, 3rd, 4th, 5th and 6th Plaintiffs general damages for
false imprisonment in the sum of RM15,000.00 each per day
for each day detained;
(b) to the 2nd, 3rd, 4th, 5th and 6th Plaintiffs aggravated damages
for false imprisonment in the sum of RM30,000.00 each;
(c) to the 2nd, 3rd, 4th and 6th Plaintiffs damages for defamation
in the sum of RM100,000.00 (RM60,000.00 general and
RM40,000.00 aggravated and exemplary damages); and
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(d) costs RM200,000.00.
[4] The Defendants appealed against the decision of the High Court
made on 2/10/2012 allowing the claim by the 2nd, 3rd, 4th, 5th and 6th
Plaintiffs with costs.
[5] The Plaintiffs appealed against the award of damages for
defamation as inadequate.
[6] For convenience, we refer to the Appellants and the Respondents
as "the Defendants" and "the Plaintiffs" respectively.
The Appeal
[7] At the commencement of the hearing of the appeal, this Court was
informed by the Defendants that their appeal would proceed only on:
(a) liability for defamation; and
(b) quantum for general and aggravated damages for unlawful
arrest and detention.
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[8] In respect of liability for defamation, this Court was informed that the
Defendants would not pursue the defence of justification but confine their
submissions to the following, that –
(a) qualified privilege applied to the press statement, and
(b) there was no malice as the 1st Defendant released a
statement from the Cawangan Risikan & Sumber-Sumber
Lain.
The Brief Facts
[9] The 2nd, 3rd and 4th Plaintiffs were arrested on 10/4/2001 under
section 73(1) of the ISA. The very next day, on 11/4/2001, a press
conference was held, where a press statement ("the press statement")
was issued to the press, asserting that their arrest and detention were
related to militant activities. The arrests were reported in the newspapers
on 12/4/2001.
[10] The news was carried on the NST, Berita Harian, Utusan Malaysia
and Harian Metro on 12/4/2001, and reported that several other related
arrests were forthcoming.
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[11] The 5th and 6th Plaintiffs were arrested and detained on 26/4/2001
and 20/4/2001 under the same section of the ISA. Their arrests were
reported in the Malay Mail of 20/4/2001, Berita Harian of 21/4/2001 and
the NST referred to the earlier arrests on 10/4/2001.
[12] Pursuant to the powers under section 8 of the ISA, the Minister
issued a detention order against the 2nd, 3rd, 4th, 5th and 6th Plaintiffs.
[13] The 2nd, 3rd and 4th; the 5th and the 6th Plaintiffs were released
on the 1/6/2003, 5/6/2003 and 12/6/2003 respectively.
The Press Statement
[14] We examined the press statement issued by the 1st Defendant. We
had added our translation thereto:
"KENYATAAN AKHBAR MENGENAI PENANGKAPAN DI
BAWAH AKTA KESELAMATAN DALAM NEGERI 1960
('AKDN')
[Press Statement in relation to arrests under the Internal
Security Act 1960 ("ISA")]
Pada 10 dan 11 April 2001, pihak polis telah menangkap dan
menahan 7 orang aktivis reformasi di bawah Sek 73(1) Akta
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Keselamatan Dalam Negeri 1960 ('AKDN'). Mereka yang
ditangkap dan ditahan adalah:
1.1 Mohamad Ezam bin Mohd Nor - 34 tahun;
1.2 Chua Tian Chang - 37 tahun;
1.3 Nisamuddin bin Md Rais atau Hishamuddin Rais - 50
tahun;
1.4 Saari bin Singib - 43 tahun;
1.5 Gobalakrishnan a/l Nagapan - 41 tahun;
1.6 Raja Petra Raja Kamarudin - 49 tahun; dan
1.7 Abdul Ghani bin Haroon - 35 tahun
[On the 10th and 11th April 2001 the police had arrested and
detained 7 persons named, (being the 1st, 2nd, 3rd, 4th, 7th
and 8th plaintiffs herein) and one Raja Petra Raja Kamarudin
under the ISA.]
2. Tangkapan dan penahanan ini dilakukan kerana terdapat
maklumat-maklumat mengenai penglibatan mereka dalam
kegiatan yang boleh memudaratkan keselamatan negara.
Pihak polis perlu menjalankan siasatan yang rapi atas
maklumat-maklumat tersebut. Kegiatan reformasi yang
bermula pada bulan SEP 1998 merancang untuk
menggulingkan kerajaan melalui demonstrasi jalanan secara
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besar-besaran dan bersiap-sedia untuk bertindak secara
militan dengan mengambil beberapa pendekatan seperti
berikut:
2.1 Telah melaksanakan langkah-langkah tertentu untuk
mendapatkan bahan letupan termasuk bom dan 'grenade
launcher’;
2.2 Menggunakan 'molotov cocktail’, 'ball bearing' serta
berbagai-bagai senjata berbahaya untuk menyerang pihak
keselamatan bagi menimbulkan keadaan huru-hara semasa
demonstrasi jalanan di sekitar Kuala Lumpur pada bulan OKT
1998; dan
2.3 Mendapatkan bantuan dan sokongan guru-guru silat serta
mempengaruhi sebilangan bekas pegawai dan anggota
keselamatan supaya menyertai gerakan mereka.
[The arrest and detention was carried out because of
information as to their involvement in activities that are
prejudicial to national security. The police need to conduct
detailed investigations on the information received. The reform
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movement that began in September 1998 planned to topple the
government through large scale demonstrations in the streets
and were ready to undertake militant action by:
Taking specific steps to obtain explosives including bombs
and grenade launchers;
Use of molotov cocktails, ball bearings and various
dangerous weapons to attack security personnel to cause
disorder or unruly disturbances during street demonstrations
around Kuala Lumpur in October 1998;
Obtaining assistance and support of silat teachers, as well
as influencing ex-security officers and personnel to
participate in their movement.]
3. Bagi membendung trend militan gerakan reformasi tersebut
maka pihak polis telah mengambil tindakan ke atas 28 orang
aktivis reformasi di bawah Sek 73(1) AKDN 1960 antara 20
SEP 98 hingga 24 DIS 98. Tindakan-tindakan pihak polis
tersebut telah dapat meredakan keadaan buat sementara
waktu.
[To contain the militant trend of the reform movement, the
police had taken action against 28 reform activists between
20th September 1998 and 24th December 1998. The said
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actions had succeeded to abate the situation for a temporary
period.]
4. Pada pertengahan tahun 1999, aktivis gerakan reformasi
muncul kembali dengan berselindung di sebalik platform
sebuah parti politik di mana sebilangan daripada mereka telah
menjalankan kegiatan-kegiatan yang boleh mewujudkan
ketegangan kaum melalui isu-isu keagamaan dan perkauman.
Ini termasuk penyebaran berita-berita palsu yang
menggemparkan seperti dakwaan bahawa ramai orang Melayu
telah dikristiankan semasa Pilihanraya Kecil Lunas. Ciri-ciri
militan semasa Pilihanraya Kecil itu telah juga dilakukan oleh
aktivis reformasi melalui perbuatan ganas dengan
mengancam, mengugut dan menakut-nakutkan para pengundi
serta orang ramai.
[In mid-1999 reform movement activists re-emerged, hiding
behind the platform of a political party where a number of them
had conducted activities that can cause racial tensions with
religious and racial issues, including dissemination of false
reports that many Malays had been converted to Christianity
during the Lunas By-Election. Features of militant action was
also carried out during the By-Election by reform activists
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through violent actions by threats and frightening voters and the
public.]
5. Pada akhir tahun 2000, aktivis reformasi telah membuat
ketetapan untuk menggunakan dua pendekatan berikut bagi
mencapai matlamat mereka:
5.1 Akan terus melibatkan diri dalam proses demokrasi yang
normal serta sistem pilihanraya; dan
5.2 Melalui cara-cara di luar perlembagaan dengan
mencetuskan demonstrasi jalanan secara besar-besaran dan
bercorak militan menjelang Pilihanraya Umum 2004.
[At the end of year 2000, reform activists had decided to adopt
two approaches to achieve their objectives:
To continue to be involved in normal democratic process and
in the election system;
Through extra-constitutional means by promoting large
scale militant demonstrations in the streets during General
Elections 2004;]
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6. Ke arah merealisasikan perancangan tersebut, satu
kumpulan sulit yang dianggotai oleh lebih kurang 20 orang
aktivis reformasi telah diwujudkan di Kuala Lumpur. Sejak 6
JAN 2001 hingga 4 APR 2001, sebanyak 12 perjumpaan sulit
telah diadakan oleh kumpulan ini bagi merancang untuk
mempengaruhi rakyat membudayakan demonstrasi jalanan
dan perhimpunan haram secara militan. Antara perancangan
terpenting gerakan reformasi dalam masa yang terdekat ini
adalah untuk menganjurkan demonstrasi jalanan yang
dipanggil 'Black 14' secara besar-besaran di Kuala Lumpur
pada 14 APR 2001. Bagi mengelirukan pihak keselamatan,
perhimpunan tersebut dipanggil 'Perhimpunan Penyerahan
Memorandum Rakyat Mengenai Hak Asasi Manusia' di mana
mereka merancang untuk mengumpulkan seramai lebih kurang
50,000 orang yang akan berhimpun di sekitar Kuala Lumpur.
Perhimpunan serta perarakan ini berpotensi menjadi rusuhan.
[Towards realising that plan, a secret group of about 20 reform
activists was formed in Kuala Lumpur. Since 6 Januari 2001
until 4 April 2001, 12 secret meetings had been held by this
group to plan to influence citizens to adopt the culture of street
demonstrations and militant racial gatherings. Among the most
important preparations of the reform movement in the
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immediate period was to promote large scale street
demonstrations in Kuala Lumpur called "Black 14" on 14 April
2001. To confuse the security agencies, the said assembly was
called "Perhimpunan Penyerahan Memorandum Rakyat
Mengenai Hak Asasi Manusia" where they plan to gather about
50,000 participants who will gather around Kuala Lumpur. Such
gatherings and parades have the potential to become a riot.]
7. Adalah jelas aktivis reformasi sanggup melaksanakan
kegiatan-kegiatan di luar perlembagaan dan undang-undang
demi mencapai matlamat mereka. Oleh itu, tindakan di bawah
Sek 73(1) AKDN 1960 diambil kerana pihak Polis mempercayai
ada alasan-alasan untuk menahan mereka di bawah Sek 8
AKDN 1960 kerana telah bertindak dengan cara yang
memudaratkan keselamatan negara."
[It is clear reform activists were willing to act unconstitutionally
and unlawfully to achieve their ends. Therefore action was
taken under section 73(1) of the ISA because the police believe
there are reasons to arrest and detain the plaintiffs under
section 8 for acting in a manner prejudicial to national security.]
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Observations on the Press Statement
[15] With the exception of paragraph 1 which announced the arrests and
detention, the 1st sentence of paragraph 2 and 2nd sentence of paragraph
7, the bulk of the press statement described activities of reform activists
that constituted acting in a manner prejudicial to "national security", a term
that in the context of Malaysia falls within the meaning of the term used in
the ISA, "security of Malaysia".
[16] Paragraph 1 of the press statement, and similarly the arrests of the
5th and 6th Plaintiffs clearly identified the Plaintiffs. The 1st sentence of
paragraph 2 explained they were arrested and detained because there
was information of their involvement in activities prejudicial to national
security and the police need to conduct thorough investigations.
[17] Section 73 of the ISA provides:
73 Power to detain suspected persons
(1) Any police officer may without warrant arrest and detain pending enquiries
any person in respect of whom he has reason to believe -
(a) that there are grounds which would justify his detention under section 8;
and
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(b) that he has acted or is about to act or is likely to act in any manner
prejudicial to the security of Malaysia or any part thereof or to the
maintenance of essential services therein or to the economic life thereof.
[18] If it is true there was such information, then only would the arrest
and detention pending inquiries be authorised under section 73(1).
[19] The press statement then went on to describe the activities of reform
activists that began in September 1998 that constituted "acting in a
manner prejudicial to the security of Malaysia", the actions taken
successfully to contain them, the re-emergence of such activities in mid-
1999, and the activities of the reform activists. Paragraph 7 began with
concluding it was clear that reform activists were willing to act
unconstitutionally and unlawfully to achieve their objectives. Then
paragraph 7 of the press statement concluded with the following:
"... Oleh itu, tindakan di bawah Sek 73(1) AKDN 1960 diambil
kerana pihak Polis mempercayai ada alasan-alasan untuk
menahan mereka di bawah Sek 8 AKDN 1960 kerana telah
bertindak dengan cara yang memudaratkan keselamatan
negara."
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[20] The last sentence above faithfully reflected the language of section
73(1).
[21] While section 73 empowers a police officer to arrest and detain any
person pending inquiries, there is a requirement that the police officer
must have reason to believe there are grounds which would justify
detention of that person under section 8 and that the person had acted or
was about to act or was likely to act in any manner prejudicial to the
security of Malaysia. Read as a whole, the requirement that the police
officer must have reason to believe means section 73(1) does not
authorise the arrest and detention of anyone "pending further inquiries" in
order to make out a case against the person, but to verify the grounds
upon which the police had reason to believe, the grounds which would
justify the Plaintiffs' detention under section 8, and that the person
arrested and detained had acted or are about to act or are likely to act in
any manner prejudicial to the security of Malaysia or any part thereof or
to the maintenance of essential services therein or to the economic life
thereof.
[22] The press statement of the arrest and detention at a press
conference therefore meant publication to all and sundry that the police
had reason to believe that there were grounds which would justify the
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Plaintiffs' detention under section 8 and that they had acted or was about
to act or was likely to act in any manner "prejudicial to the security of
Malaysia ...". Although the last sentence of the press statement faithfully
reflected the language of section 73(1), it was not mere formality but was
a specific statement that the Defendants had reason to believe. The press
statement unquestionably associated the Plaintiffs with the activities of
reform activists. It is the wrong kind of person, citizen or politician who
regards involvement or accusation of involvement in activities prejudicial
to national security as a badge of honour. For the rest of us, it is
unquestionably prima facie defamatory if the association and accusation
turns out not to be true.
[23] Having come to this conclusion, it is necessary to examine whether
the defence of qualified privilege arises.
Qualified Privilege
[24] In Reynolds v Times Newspapers Limited & Ors. [2001] 2 AC
127 HL, Albert Reynolds, a former Irish Prime Minister was accused in the
British press of deliberately misleading the Irish Parliament. Reynolds
sued for defamation and the defendants pleaded, inter alia, qualified
privilege. The House of Lords held that the defence of qualified privilege
would be available in respect of political information when the defendant
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satisfied the old common law test, i.e.: “where the person who makes a
communication has an interest or a duty, legal, social, or moral, to make
it to the person to whom it is made, and the person to whom it is so made
has a corresponding interest or duty to receive it. The public statement,
including any press statement, in respect of the arrest and detention of
the plaintiffs under the ISA pending further inquiries, is therefore
necessarily protected by qualified privilege.
[25] An arrest and detention under the ISA, being without trial, is always
a matter of public concern. A timely public statement by the authorities in
explanation of such action, is very much in the public interest, to assure
the public that the power to arrest and detain under it was not being
abused. The public statement is in fact a detainee's best protection, being
the publicization of his plight into the public notice.
[26] In Loutchansky v Times Newspapers Ltd and Others (Nos. 2-5)
[2001] EWCA Civ 1805; [2002] QB 783, it was explained by the English
Court of Appeal that while the interest served was that of the public in a
modern democracy in free expression and in a free and vigorous press,
the corresponding duty upon the journalist was to discharge that function
by behaving as a responsible journalist.
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[27] The logic must equally follow from the elucidation in Public
Prosecutor v Ooi Kee Saik & Ors (supra) and Loutchansky v Times
Newspapers Ltd and Others (Nos. 2-5) (supra) that while police powers
of arrest and detention pending inquiries is a necessity in cases affecting
national security, there is a duty upon the police to act responsibly and not
abuse the power. Likewise while qualified privilege is a defence, it is not
an absolute defence and malice, as an abuse of that defence, negates it.
[28] Certainly, in our view, the exercise of the draconian powers to arrest
and detain pending inquiries on the grounds the police have reason to
believe there are grounds which would justify the plaintiffs' detention
under section 8 and that they had acted or are about to act or are likely to
act in any manner prejudicial to the security of Malaysia or any part thereof
or to the maintenance of essential services therein or to the economic life
thereof, calls for occasion to explain to the public the exercise of the power
to reassure the public that the draconian powers were not being abused,
because it is only too easy and even perhaps tempting to label political
opponents as a security threat and thus justifying their arrest and
detention. There is thus a duty to explain so that the public is not only
informed of such arrest but is also assured that the draconian powers
were not abused. Such an occasion is unquestionably an occasion of
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privilege and statements made thereat for general publication calls for
protection by qualified privilege.
[29] But it is equally unquestionable that if the occasion is abused, no
defence of qualified privilege can be sustained even if an occasion for
qualified privilege does arise to make a press statement.
[30] Cases such as R Rama Chandran v Industrial Court of Malaysia
& Anor [1997] 1 CLJ 147 FC, Kumpulan Perangsang Selangor Bhd v
Zaid Hj Mohd Noh [1997] 2 CLJ 11 SC and Dato Seri Syed Hamid Syed
Jaafar Albar (Menteri Dalam Negeri) v SIS Forum (Malaysia) [2012] 9
CLJ 297 CA have established that matters involving security and public
order are not amenable to judicial review, and that disclosure of the
information upon which the action was taken is undesirable.
[31] We bear in mind also the impeccable elucidation in Public
Prosecutor v Ooi Kee Saik & Ors [1971] 2 MLJ 108 by Raja Azlan Shah
J (as His Majesty then was) on the balance between the government's
duty to preserve public peace and order, and therefore the right to
legislate laws to do so, and the public right of lawful criticism of the
government:
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"The Government has a right to preserve public peace and
order, and therefore, has a good right to prohibit the
propagation of opinions which have a seditious tendency ...
Therefore, a meaningful understanding of the right to freedom
of speech under the Constitution must be based on the realities
of our contemporary society in Malaysia by striking a balance
of the individual interest against the general security or the
general morals, or the existing political and cultural institutions
... The dividing line between lawful criticism of Government and
sedition is this - if upon reading the impugned speech as a
whole the court finds that it was intended to be a criticism of
Government policy or administration with a view to obtain its
change or reform, the speech is safe. But if the court comes to
the conclusion that the speech used naturally, clearly and
indubitably, has the tendency of stirring up hatred, contempt or
disaffection against the Government then it is caught within the
ban of paragraph (a) of section 3(1) of the Act ... To 'excite
disaffection' in relation to a Government refers to the implanting
or arousing or stimulating in the minds of people a feeling of
antagonism, enmity and disloyalty tending to make government
insecure."
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[32] As to who should be the judge of what national security requires,
Lord Parker delivering the opinion of the Judicial Committee in The
Zamora [1916] 2 AC 77, 107 PC, had this to say:
"Those who are responsible for national security must be the
sole judges of what the national security requires. It would be
obviously undesirable that such matters should be the subject
of evidence in a court of law or otherwise discussed in public."
[33] In The Secretary of State for the Home Department v Rehman
[2001] 1 All ER 122 HL, Lord Slynn in the House of Lords expressed the
view that the threat need not be a direct threat to national security so that
the executive is not hampered from assessing how to protect the interests
of the state, which include "not merely military defence but democracy",
and "the legal and constitutional systems of the state. Lord Slynn found it
self-evident that "national courts must give great weight to the views of the
executive on matters of national security", and it "should not ordinarily
interfere with a case in which it considers that the view of the Home
Secretary is one which could reasonably be entertained."
[34] Even though the police's assessment of what amounts to a threat to
national security must be given latitude and weight, it does not mean it is
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not open to examination subsequently, otherwise the public has no
protection from the police purporting to act in the name of national security
when they are not. The powers cannot be abused or exercised arbitrarily
with impunity. In Council of Civil Service Unions & Ors v Minister for
the Civil Service [1984] 3 All ER 935 HL, which discussed The Zamora
(supra), Lord Fraser of Tullybelton explained:
"The decision on whether the requirements of national security
outweigh the duty of fairness in any particular case is for the
government and not for the courts; the government alone has
access to the necessary information, and in any event the
judicial process is unsuitable for reaching decisions on national
security. But if the decision is successfully challenged, on the
ground that it has been reached by a process which is unfair,
then the Government is under an obligation to produce
evidence that the decision was in fact based on grounds of
national security."
[35] Hence, it is not that actions to protect national security cannot be
challenged at all, but where it is successfully challenged, it must be
answered. If it cannot answer, legal consequences may follow. It is the
obvious counterpoise in the system of check and balance that while
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powers of arrest and detention in the interests of national security are
necessary, and are unacceptable to or feared by only those who expect
to engage in such activities, it is equally obvious it is a power that must be
exercised responsibly and not abused. It follows therefore that merely
maintaining that the provisions of section 73 had been followed and there
was prior investigation by Bahagian Risikan is not a sufficient answer to a
challenge to the assessment and decision.
[36] We recognise it may be difficult to successfully challenge the
assessment and decision, given the nature of the evidence and the
confidential nature of investigations on threats to national security.
Activities prejudicial to national security more often than not are conducted
secretly. The nature of investigations may necessarily be confidential,
where disclosure may endanger the sources and compromise the ability
to investigate. A maximum 15 day remand under the Criminal Procedure
Code means that arrest is authorised only when the better part of an
investigation had been completed and evidence obtained before arrested
is authorised. The 2 months maximum detention under section 73 of the
ISA reflects recognition of the difficulty to gather evidence ultimately to
satisfy the Minister under section 8 to make a detention order.
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[37] Ironically, direct evidence to prove involvement in activities
prejudicial to national security is as notoriously hard to come by, as it is to
successfully challenge the government's assessment and decision as to
threat to national security. But that is not to say it can never be proved,
because total secrecy is not possible. If a person is arrested and detained,
relatives, friends and associates will know he is missing. The person
arrested and detained himself not only knows of his arrest and detention,
but also how he is dealt with or treated while he is under arrest and
detention. These may show whether the police officer acting under section
73 had reason to believe that there are grounds which would justify
detention of that person under section 8 and that the person had acted or
was about to act or was likely to act in any manner prejudicial to the
security of Malaysia or any part thereof or to the maintenance of essential
services therein or to the economic life thereof. That person may be able
to identify the persons having charge of him when arrested and detained,
require their attendance as witnesses, and if necessary to call them and
examine them as hostile witnesses.
[38] In this case, the evidence was unchallenged that the Plaintiffs were
not questioned or required to explain as to their activities purported to be
prejudicial to the security of Malaysia. There was no explanation in
evidence as to why they did not do so. Furthermore the defendant's
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witnesses DW1, DW2, DW3 and DW4 did not say, giving reasons, that
they were not able to disclose the evidence they found, but on the contrary
admitted they did not find anything to link the plaintiffs to the militant
activities, and that the interrogations had nothing to do with national
security.
[39] The press statement had asserted that the arrest and detention was
made upon information obtained. That the information was obtained by
the Bahagian Risikan and supplied to the 1st defendant is no defence that
the 1st Defendant can rely on to show lack of malice. The explanation
provided by the press statement meant there was already some evidence
before the plaintiffs were arrested and detained under section 73 for
further inquiries. The admissions of DW1, DW2, DW3 and DW4 meant
that the press statement, and
(a) prepared before the press conference called for the purpose;
and
(b) released to the press in the press conference by the 1st
Defendant, the highest ranking officer in the police force,
was incorrect and not true when it gave the inference there was
some evidence against the plaintiffs of their activities prejudicial to
the security of Malaysia when they were arrested and detained
pending further inquiries. The press statement, issued to assure the
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public that section 73 of the ISA was not being abused, were in the
circumstances made recklessly by the 1st Defendant.
[40] We note that:
(a) the act of arrest and detention pending inquiries in respect of
actions prejudicial to the security of Malaysia is authorised by
the ISA; and
(b) the Defendants relied upon the report of the Bahagian Risikan
of the police force.
[41] It is trite that truth (justification) is a complete defence, but where a
statement alleged to be defamatory is unable to be defended by a
defendant as being true, then the defence of qualified privilege may be
relied upon to provide a defence, if it is made upon an occasion as
described in Reynolds v Times Newspapers Limited & Ors (supra),
being communication on an occasion where it appears there is a duty to
make a statement, and the persons to whom it was made had a
corresponding interest to receive it.
28
[42] The defence of qualified privilege is relied upon primarily when one
is unable to prove the truth of the statement, or when the statement made
is untrue. The defence of qualified privilege is therefore a defence upon
the basis that even though the statement made was unable to be proved
as true, or is in fact untrue, it was made in good faith upon an occasion
when there is a duty to make the statement to parties who have an interest
to receive it. That good faith is negated, and the defence of qualified
privilege with it, when the occasion is abused to make the statements that
are defamatory. The law of defamation must strike a balance between the
duty to make the press statement and protecting persons against untrue
statements that harm them.
[43] Amongst the old cases the reading of which provide diversion to
judges, are Dawkins v Lord Paulet (1869) LR 5 QB 94 and Bradford
Corp v Pickles (1895) AC 587 HL. In Dawkins v Lord Paulet (supra), a
captain sued the major general commanding the brigade alleging libel in
a report on the captain. It was held by a majority that even though there
was malice and absence of any reasonable or probable cause, the major-
general was not liable. Cockburn CJ, dissenting, held the view that the
major-general would lose his defence if the captain proves he lacked
"bona fides". Mellor J considered that where a person is doing his duty,
the question of malice was irrelevant:
29
"I apprehend that the motives under which a man acts in doing
a duty which it is incumbent upon him to do, cannot make the
doing of that duty actionable, however malicious they may be.
I think that the law regards the doing of the duty and not the
motives under which it is done. In short, it appears to me, that
the proposition resulting from the admitted statements on this
record amounts to this: Does an action lie against a man for
maliciously doing his duty? I am of opinion that it does not."
[44] In Bradford Corp v Pickles (supra), the respondent diverted water
so that it no longer flowed to his neighbour's property. The purpose
appeared to be to force the neighbour to buy his property at a higher price.
It was held that no one has a right to divert water flowing to their property,
and therefore the diversion by P did not constitute a nuisance.
[45] On the face of it, these cases appear to lend support to the argument
that the Defendants having the responsibility to maintain security of
Malaysia, and in using the ISA, had a duty to make the press statement
to assure the public that the powers of arrest and detention pending
inquiries was not being abused, cannot be held liable for defamation in a
press statement issued in explanation, even if there was malice.
30
[46] However, the argument would not be in accord with the present day
developments in judicial review where in the exercise of its supervisory
jurisdiction, judicial scrutiny is directed to examination of whether the
executive power was exercised without illegality, procedural impropriety
or irrationality (see Council of Civil Service Unions & Ors v Minister
for the Civil Service (supra)), meaning that the executive power must be
exercised in good faith and not abused. The notion that that there could
be no liability for the wrong or spiteful exercise of a right is inconsistent
with these principles of judicial review. In Horrocks v Lowe [1975] AC
135 HL, Lord Diplock had this to say:
"... The public interest that the law should provide an effective
means whereby a man can vindicate his reputation against
calumny has nevertheless to be accommodated to the
competing public interest in permitting men to communicate
frankly and freely with one another about matters in respect of
which the law recognises that they have a duty to perform or an
interest to protect in doing so. What is published in good faith
on matters of these kinds is published on a privileged occasion.
It is not actionable even though it be defamatory and turns out
to be untrue. With some exceptions which are irrelevant to the
instant appeal, the privilege is not absolute but qualified. It is
31
lost if the occasion which gives rise to it is misused. For in all
cases of qualified privilege there is some special reason of
public policy why the law accords immunity from suit – the
existence of some public or private duty, whether legal or moral,
on the part of the maker of the defamatory statement which
justifies his communicating it or of some interest of his own
which he is entitled to protect by doing so. If he uses the
occasion for some other reason he loses the protection of the
privilege.”
[47] When the press statement was considered together with the
admissions of DW1, DW2, DW3 and DW4 and the unexplained absence
of evidence and questioning or confronting the Plaintiffs as to their
activities alleged to be prejudicial to the security of Malaysia, one was led
to the conclusion that the press statement was made to justify the arrest
and detention without there being evidence of the Plaintiffs' activities that
were prejudicial to the security of Malaysia which would have justified
action under section 73 of the ISA for further enquiries. Strictly the press
conference was not an occasion of qualified privilege, or even if the
occasion were accepted as one of qualified privilege, the press statement,
being, from the admissions of DW1, DW2, DW3 and DW4 to be without
32
basis, was none other than reckless and without foundation, and the
protection of qualified privilege was thereby lost.
[48] We would, therefore, dismiss the Defendants’ appeal on qualified
privilege.
Quantum of Damages, Defamation and False Imprisonment
[49] The 5th Plaintiff did not appeal against the finding of the High Court
to exclude the 5th Plaintiff and entering judgment in favour of the 2nd, 3rd,
4th and 6th Plaintiffs only. The 2nd, 3rd, 4th and 6th Plaintiffs appealed
against the quantum of RM100,000.00 (RM60,000.00 general damages
and RM40,000.00 aggravated and exemplary damages) awarded by the
High Court.
[50] The Defendants appealed against the award of damages in respect
of false imprisonment at RM15,000.00 per day.
[51] We accept the submission that in defamation cases, general
damages are essentially the compensation order by the Court for damage
done to the plaintiff's reputation.
33
[52] In giving the circumstances and the submissions our anxious
consideration, we appreciated an important distinction. This case is not a
defamation action against another private person or company. It is against
public officers with a public duty and responsibility to act to protect national
security and to make the press statement, and the Government being held
vicariously liable for their actions. With duty and responsibility of
government on one side and the persons arrested and detained and press
statement made in respect of them and their arrest and detention on the
other, what is a public officer to do when he is cast by such persons into
the role of an opponent, challenged, castigated, accused and condemned,
and their very act condemned if not for one reason, then another. It is a
predicament that leaves the officer with nowhere to turn and no one to
rightly trust. In the absence of evidence of actual malice on the part of the
1st Defendant, we conclude the recklessness in this case was a mistake
made in difficult circumstances, resulting from public officers succumbing
to using the powers when it is not justified.
[53] As much as we appreciate the injury suffered by the Plaintiffs, it
must be balanced against the interests of the State and the nation, and
that includes all of its citizens, for whose interests the Plaintiffs no doubt
would be happy to represent. If the Plaintiffs' purpose is to act, to take
risks and make sacrifices if necessary for the people, it would be odd that
34
the citizens indirectly to have to now pay the Plaintiffs’ substantial
damages for the defamation. We think that more often than not in such
circumstances, the sacrifices, where warranted, and the vindication of a
judgment are more valuable than any purely monetary award.
[54] We were, therefore, not persuaded that there has been such an
error to warrant appellate intervention in the exercise of discretion by the
trial judge in the award as to damages for defamation. Accordingly, we
dismissed the appeal by the 2nd, 3rd, 4th and 6th Plaintiffs on the
quantum of damages for defamation.
[55] Since the Defendants’ appeal is confined to quantum of damages
for false imprisonment, it is unnecessary -
(a) to address the questions of res judicata in this case based
upon the decision of the Federal Court in Mohamad Ezam
Mohd Noor v Ketua Polis Negara & Other Appeals [2002] 4
CLJ 309 FC. Mohamad Ezam Mohd Noor not being a party in
this case, res judicata does not arise as the parties are not the
same; or
35
(b) to address the question of whether there was unlawful arrest
and detention or not.
[56] The High Court dealt with the issue of damages for unlawful arrest
and false imprisonment between paragraphs 36 and 39 of the grounds of
judgment. The High Court had awarded RM15,000.00 per day.
[57] The Senior Federal Counsel referred to the decision of this Court in
(a) Penguasa Tempat Tahanan Perlindungan Kamunting,
Taiping & 2 Lagi v Badrul Zaman Bin P.S. Md Zakariah
[2014] 7 CLJ 533 CA , and
(b) Thompson v Comr. of Police of the Metropolis [1998] QB
498.
[58] In McGregor on Damages, it was observed by the learned
commentator that:
"The details on how damages are worked out in false
imprisonment are few: generally it is not pecuniary loss but a
loss of dignity and the like and is left much to the jury's and
judge's discretion. The principal heads of claim would appear
36
to be the injury to liberty, i.e., the loss of time considered
primarily from a non-pecuniary viewpoint, and the injury to
feelings, i.e., the indignity, mental suffering, disgrace and
humiliation with any attendant loss of social status and injury to
reputation ... In addition there may be recovery for any resultant
physical injury, illness or discomfort...further any pecuniary loss
which is not too remote is recoverable; there appears to be no
modern reported cases ... that any loss of general business or
employment is recoverable would seem to follow from Childs v
Lewis ...”
[59] The point made in McGregor is that the principle of damages for
false imprisonment is not pecuniary loss but for the loss of dignity by the
false arrest and imprisonment, but pecuniary loss can be recovered
provided it is pleaded and not too remote.
[60] The claim in this case is predicated upon false imprisonment only,
and as in Penguasa Tempat Tahanan Perlindungan Kamunting,
Taiping & 2 Lagi v Badrul Zaman Bin P.S. Md Zakariah (supra), we
hold that the pleadings nor the evidence adduced do not provide support
for a claim for pecuniary loss.
37
[61] Case-law in respect of damages for false imprisonment, was
reviewed in Penguasa Tempat Tahanan Perlindungan Kamunting,
Taiping & 2 Lagi v Badrul Zaman Bin P.S. Md Zakariah (supra). The
award of RM3,000,000.00 pegged at the rate of RM20,000.00 per day and
discounted at 50% was reduced to an award of RM300,000.00, effectively
amounting to RM1,000.00 per day.
[62] This Court in Penguasa Tempat Tahanan Perlindungan
Kamunting, Taiping & 2 Lagi v Badrul Zaman Bin P.S. Md Zakariah
(supra) has stated that the total amount for longer periods is not a case
of simple arithmetical progression, but that that damages awarded must
be "sufficient" since it will be in the public interest to award more than
nominal damages "in order to give reality to the protection afforded by law
to personal freedom". This is because the fact remains that the false
imprisonment remains one and the same. False imprisonment is not a
separate wrong each determined upon a daily, weekly or monthly basis.
Nor is it upon an hourly or minute by minute basis. Nevertheless it is
unarguable that although the severity of false imprisonment is not
necessarily upon an arithmetical progression, the longer the false
imprisonment the more severe is the tort. In our view, the circumstances
is always relevant including the reasons given for the arrest and detention,
whether efforts made to seek release was actively resisted. If a person did
38
not seek release, but was happy to remain in detention albeit unlawfully,
he cannot be said to have suffered much loss of dignity and he should not
use the occasion for lucrative income by claiming damages. Ultimately the
damages is for what is pleaded, the evidence adduced in respect thereof,
and only for damages that is reasonably foreseeable and reasonable.
[63] In Penguasa Tempat Tahanan Perlindungan Kamunting,
Taiping & 2 Lagi v Badrul Zaman Bin P.S. Md Zakariah (supra),
personal freedom was curtailed for acting:
"... dengan sedar dan rela hati telah melibatkan diri dalam
kegiatan-kegiatan memalsukan dokumen-dokumen perjalanan
Malaysia serta menguruskan penghantaran rakyat
warganegara asing berhijrah ke negara ketiga daripada
Malaysia dengan menggunakan dokumen-dokumen yang telah
dipalsukan oleh kamu di mana dengan kegiatan kamu ini boleh
memudaratkan keselamatan Malaysia."
[64] That case involved 32 fake visas and successfully organising the
departure of about 175 persons who had overstayed in Malaysia.
39
[65] From the press statement, the instant case involved not persons in
criminal activities for personal gain, but persons in political activities whom
the police stated it "had reason to believe" was involved in activities
prejudicial to the security of Malaysia but at the trial, neither evidence for
such reason to believe was produced nor reasons for the failure to do so
was presented in the trial, leading to the conclusion there was no basis for
the arrest and detention, and that the plaintiffs were arrested for their
political activities. Such arrest and detention strikes at the very heart of a
democracy, and in our view, is a much more serious assault on personal
liberty and with very much less justification for arrest and detention. The
Constitution expects of the police a fair, objective and independent
approach in respect of political activities, as it is the key to a functioning
democratic system. The police must be seen to be fair, objective and
independent. Only when respected as being fair, objective and
independent can it be effective in serving its function within the law. For
this reason a sufficient award in this case must be substantially more than
in a case such as Penguasa Tempat Tahanan Perlindungan
Kamunting, Taiping & 2 Lagi v Badrul Zaman Bin P.S. Md Zakariah
(supra). A sum ranging between RM400,000.00 and RM550,000.00
would be appropriate.
40
[66] We would, therefore, allow the appeal on damages for false
imprisonment in part to reduce the award of general damages to
RM10,000.00 per day.
[67] We conclude with the observation that the fundamental
Constitutional principle is that the rights and liberties of persons and
powers of the institutions of the State are balanced against each other in
the interests of the security of Malaysia or any part thereof, the
maintenance of essential services therein and the economic life thereof.
No right, liberty or power is absolute. Acceptance and adherence to the
principle is essential to the functioning of the Constitution.
[68] Accordingly we:
(a) dismissed the appeal by the Defendants on the defence of
qualified privilege for defamation;
(b) dismissed the appeal by the Plaintiffs on quantum of damages
for defamation,
41
(c) allow the appeal on quantum of damages for false
imprisonment by reducing the sum from RM15,000.00 to
RM10,000.00 per day; and
(d) ordered each party to bear their own costs.
Signed
(DATUK ABDUL WAHAB PATAIL) Judge
Court of Appeal of Malaysia Putrajaya
Dated: 11th May, 2015 Counsels/Solicitors For the Appellants: SFC Kamal Azira Bin Hassan, SFC Normastura Bitni Ayub & FC Shaiful Nizam Bin Shahrin Jabatan Peguam Negara Bahagian Guaman Aras 3, Blok C3, Kompleks C Pusat Pentadbiran Kerajaan Persekutuan 62512 PUTRAJAYA For the Respondents: Ranjit Singh, Razlan Hadri Zulkifli, Ho Kok Yew, Jennifer Wah Pei Lui & Che Beng Han Randy Messrs Owee & Ho 12-1, Jalan Solaris 3 Solaris Mont’ Kiara 50480 KUALA LUMPUR